The exception that ate the rule

The public comment period is one of the few points in the federal regulatory process where an ordinary citizen, a small business owner or a legal aid clinic can put an objection on the record before a rule takes effect. A watchdog report released this month shows how often agencies skip that step entirely — and a federal court case decided this year shows exactly how thin the justifications for doing so can be.

A pattern hiding in plain sight

On September 4, the Government Accountability Office made public a report examining twelve years of federal rulemaking, from January 2013 to January 2025. Reviewing 116 major interim final rules and a dozen direct final rules, GAO found that agencies invoked the Administrative Procedure Act's "good cause" exception — the provision meant for rare emergencies where advance notice-and-comment would be "impracticable, unnecessary, or contrary to the public interest" — in roughly 71 percent of the major interim final rules it examined. Usage spiked, unsurprisingly, during the pandemic: agencies issued 55 COVID-related rules under expedited procedures in 2020 and 2021, citing good cause for 41 of them. But GAO also found that in ordinary years, agencies still bypass notice-and-comment for two to ten major rules annually, a steady baseline that predates and postdates the emergency that supposedly justified the practice.

The report matters because the whole architecture of the modern regulatory state rests on the assumption that the public gets a say before a rule binds it. The Congressional Research Service has long noted that courts construe the good-cause exception narrowly precisely because it is an exception, not an alternative track. GAO's data suggests that narrow reading has not stopped agencies from reaching for it as a matter of course.

The exception that would swallow the rule

A case decided this spring in Washington shows what that reach looks like up close, and why it is still relevant as an appeal sits before the D.C. Circuit. On February 6, 2026, the Department of Justice's Executive Office for Immigration Review published an interim final rule rewriting appellate procedure at the Board of Immigration Appeals. The rule made merits review of an immigration judge's decision discretionary rather than automatic, compressed briefing schedules, and made summary dismissal the default outcome for most appeals — all effective a single month after publication, with no prior comment period.

EOIR did not invoke general emergency "good cause." Instead, in the rule's preamble, the agency argued notice-and-comment was unnecessary for two separate reasons: first, that the changes were merely "procedural" housekeeping under the APA's rule-of-agency-procedure exemption, and second, that the rule implicated a "foreign affairs function" of the government because faster deportations would send a deterrence signal to migrants abroad. Five legal aid and advocacy organizations — Amica Center for Immigrant Rights, Brooklyn Defender Services, the Florence Immigrant and Refugee Rights Project, HIAS and the National Immigrant Justice Center, joined by the American Immigration Council — sued to block the rule in the U.S. District Court for the District of Columbia.

On March 8, 2026, the day before the rule was to take full effect, Judge Randolph D. Moss rejected both of the government's justifications in a 73-page memorandum opinion, vacating the rule's most significant provisions while leaving narrower technical changes in place. The procedural-rule exemption failed, he found, because the shift from presumed merits review to presumed summary dismissal altered substantive rights, not merely internal housekeeping. The foreign-affairs argument fared no better. Moss noted that under the government's own theory, virtually any domestic rule touching immigration — or aviation, or the environment, for that matter — could claim the same exemption from public participation.

"It is difficult to conceive of any immigration regulation or, indeed, any regulation relating to a host of other fields, from aviation to the environment, that would not support a similar justification for avoiding the notice-and-comment requirement," Judge Moss wrote.

Litigation is not a systemic fix

The ruling is a useful data point precisely because it confirms, case by case, what GAO found in the aggregate: agencies are not treating the comment-skipping exceptions as narrow escape valves reserved for genuine emergencies. They are treating them as an available option whenever an interim rule would otherwise face delay, and drafting the legal justification to fit. According to the case docket, the government has since filed a notice of appeal to the D.C. Circuit, where the matter remains pending — meaning the precise legal question of how far the foreign-affairs exemption can stretch to cover a routine appellate-procedure rule is still unresolved at the appellate level.

There is a fair counterargument, and EOIR made a version of it: courts, agencies and litigants alike are contending with a growing immigration case backlog, and delay itself imposes real costs on people waiting years for a hearing. Notice-and-comment periods, typically running 30 to 60 days followed by review of the responses received, are not free. But the record in this case cuts against treating that as a good-cause emergency rather than an ordinary administrative burden: the backlog EOIR cited has been building for years, was foreseeable, and is exactly the kind of chronic condition — as opposed to a sudden crisis — that courts have said does not meet the good-cause standard. If a multi-year backlog qualifies as an emergency justifying bypassed comment, it is difficult to see what routine agency business would not.

The deeper problem is structural. Litigation like Amica Center is slow, expensive, and available only to parties with the resources and legal standing to sue before a rule does its damage; the BIA rule was in effect for a month before the court acted, during which some appeals were processed under standards a federal judge later found unlawful. GAO's report, meanwhile, is a description of the problem rather than a remedy — it catalogs how often agencies use good cause and adjacent exemptions but stops short of a legislative or regulatory fix. That leaves oversight sitting in an uncomfortable gap: Congress writes the exceptions narrowly, agencies interpret them broadly as a matter of institutional convenience, and courts intervene only after the fact, one lawsuit at a time, against parties who can afford to bring one.

What should follow

Two things ought to happen from here. First, the D.C. Circuit's eventual ruling in the EOIR appeal should settle, at least for that circuit, whether "foreign affairs" can be invoked for a rule with no direct connection to diplomacy or international relations — a question with implications well beyond immigration, given how many domestic policy areas touch international commerce, security or migration in some tangential way. Second, GAO's twelve-year data set gives Congress an evidentiary basis, which it has previously lacked, to consider tightening the statutory language of the good-cause exception itself, or requiring agencies to certify in writing — subject to prompt judicial review — the specific, non-routine circumstance that makes advance public comment impracticable. Absent that kind of structural check, the GAO numbers suggest agencies of both parties will keep finding "good cause," in one form or another, roughly seven times out of ten.